A Concise History of the Common Law. Theodore F. T. Plucknett

ordering a subject to do right and justice, and if he refused, he was guilty of contempt of the King’s writ. The defendant in a writ of debt, for example, not only denies his liability, but also denies tort and force in resisting the King’s command.

      (6) The idea of the King’s peace was not only the basis of criminal jurisdiction, but could also be used to enlarge the civil jurisdiction of the King’s Court. This was effected through the action of trespass, which although criminal in form was constantly becoming more and more a civil action.

CHAPTER 6

      THE ELABORATION OF THE JUDICIAL SYSTEM: 1307-1509

      SUMMARY

       The Position of the Courts

       The Isolation of the Judges

       Competition between Courts

       The Exchequer of Pleas

       The Exchequer Chamber, 1357

       The Exchequer Chamber for Debate

       King’s Bench and Trespass

       The Common Law Side of Chancery

       The Need for De-centralisation

       The Nisi Prius System

       Justices of the Peace

       The Fate of the Local Courts

      The last chapter has briefly told the beginning of a long story. When once the superior courts had come into existence there still remained the question whether they would continue upon the course which they had begun.

THE POSITION OF THE COURTS

      Their subsequent history will show that much was to happen which would have astonished the statesmen of Henry II and Edward I. For example, a great characteristic of the early judicial system was its flexibility. Cases could move from court to court as occasion required: the lines of division between the different jurisdictions were not insurmountable; the King was in constant contact, through the council, with the judges, and his intervention was often to the advancement of justice, although at times no doubt it might be used by a weak monarch for personal ends. The judges themselves, closely co-operating with the council, exercised a good deal of discretion, and in many cases tempered law with equitable considerations. As the centuries passed, however, many changes came about. The courts gained some degree of independence of the Crown, but in doing so lost their discretionary powers. Their procedure became rigid and mechanical, unchangeable save by parliamentary statute. Reform, if it came at all, came from without.

THE ISOLATION OF THE JUDGES

We have already noticed the close connection which once existed between the courts and the council, and indeed with the King himself. The result, while it lasted, was that the judges normally exercised a considerable amount of discretion, particularly in procedural matters. It must not be rashly assumed that the further back we go the more rigid was the law. On the contrary, investigation has shown the wide discretion which was allowed to the courts both in the twelfth and thirteenth centuries.¹ It is not until the middle of the fourteenth century that this discretion begins to disappear. A great step in this development was the solemn enactment of the Statute of Northampton² in 1328 which declared that no royal command under the Great or the Smaller Seal shall disturb the course of the common law, and that if such a command is issued, the judges shall ignore it. Slowly but steadily the judges ventured to enforce the plain words of this important act,³ and so to assume the detached position which is typical of most modern judiciaries.

      The remarkable political crisis⁴ of 1340 took matters a stage further by showing the unseemliness of treating judges as though they were politicians, and about the years 1340 to 1350 we find several expressions from the bench and bar which seem to indicate that the position of the courts is changing. In cases where we know that discretion was once exercised we now find it refused. Instead of bending the rules of procedure to the broad requirements of justice, we find the courts declaring that “we will not and cannot change ancient usages”; “statutes are to be taken strictly”; an innocent man might lie indefinitely in prison, or a creditor might be deprived of his remedy through the manipulation of procedural rules, and all the court will say is that “we can do nothing without a statute”.⁵ In short, the judges attempted to cast upon parliament the responsibility for future legal reform.

      Similarly, there were difficult cases where the judges could not make up their minds—to the great delay of litigants. Already, in theory, Fleta had attributed to parliament the duty of resolving judicial doubts,⁶ and in 1311 the Ordinances, c. 29, required the termination of such cases in parliament—instances occur of the ordinance being applied.⁷

In the next reign Parliament passed a curious statute in 1340 giving powers to commissioners (evidently non-lawyers) to decide cases which had been delayed because the judges found them too difficult.⁸ So public an expression of distrust in the judiciary could only have the effect of making the benches retire still more strictly into the seclusion of their courts and the technicalities of their procedure. Moreover, if the five could not agree, the lords at large undertook to settle the matter—and from this date the lords assert their ascendancy, and treat the judges (and the councillors) as merely assistants in their house.¹

      The common law is therefore beginning to retire to a definite and limited field, resigns its flexibility and declines to be drawn into attempts to remove its own defects: that will henceforth be the province of Parliament. Later still, when Parliament fails to keep pace with the needs of litigants, it will be the Chancellor who will take up the task. This loss is compensated to some extent by the growing independence of the judges. Less and less often do we find them at the council board or giving effect to royal commands from the bench.

COMPETITION BETWEEN COURTS

      The formulary system, which once had been a labour-saving device, developed into the system of forms of action which finally stunted and crippled the common law to such an extent that an entirely new system or prerogative courts of equity was needed. Even within the common law itself, the formulaic system was recognised as mischievous, for the common law courts began to compete with one another for business, piling fiction upon fiction in an endeavour to escape from the heavy burden of their history. Most strange of all, the common law courts found themselves champions of the popular cause against the Crown in the seventeenth century, although just a century before they had been loudly condemned by the public for their weakness, their slowness and their costliness.

      The